Medical Malpractice

Failure to Recognize Fetal Distress - $23,200,000 Jury Verdict

Walkup's senior partner, Michael A. Kelly, obtained a $23,200,000 jury verdict on February 9, 2010 in Kandiyoh County, Minnesota, in a case involving cerebral palsy, quadriplegia and cognitive impairment to a 2 ½ year old child whose Family Medicine doctor failed to appreciate the warning signs of fetal distress during her birth in June 2007. As a result, a timely caesarian section was not performed. The child was deprived of oxygen for 28 minutes before an emergency c-section could be completed. Hypoxic Ischemic Encephalopathy resulted, and the child now has multiple health problems including a permanent tracheotomy, g-tube, spastic cerebral palsy, cortical impairment and seizures. The jury award included $1.7 million for past health care expenses, $10 million for future health care expenses, $10 million for past and future pain, disability and emotional distress, and $1.5 million for loss of earning capacity. Unlike California's anti-consumer MICRA laws, the governing law of Minnesota (like most states) does not restrict a patient's right to be made whole for harms and injuries caused by health care professionals.

Failure to Recognize Fetal Distress – $5,000,000 Settlement

Walkup attorneys negotiated a cash and annuity settlement with a present cash value in excess of five million dollars on behalf of an infant born with severe developmental delay, spastic quadriparesis, and permanent neurological injuries after doctors and nursing staff failed to monitor the mother and deliver the baby quickly when fetal heart monitors indicated severe distress. The 36-year-old mother’s pregnancy and delivery seemed to be progressing normally when, 8 hours after being admitted to the hospital, she developed a high fever. The doctor on call administered antibiotics for suspected chorioamnionitis (an inflammation of the amniotic membranes) and said he would check back in an hour. Nearly three hours later, the fetal heart rate monitors indicated that the baby’s heart rate had dropped to 85 and 90, and remained there for about 10 minutes, prompting a frightened nurse to contact the doctor. Deceleration of the fetal heart rate is a common effect of chorioamnionitis. The infant was born a half hour later, by emergent vacuum extraction, with no heart rate, and appearing blue, floppy, and apneic. She was resuscitated through chest compressions and intubation. In the days following her birth, the infant exhibited general seizures with tremors in the lower and upper extremities. An MRI performed 8 days after her birth revealed that the infant had severe hypoxic ischemic encephalopathy. The child will remain fully dependent for all of her care needs for her entire life. She is not expected to develop beyond the level of a one month old infant. Liability was based upon failure to aggressively monitor the mother and fetus post administration of antibiotics and failure to deliver the baby when infection was first suspected.

Birth Trauma – $4,100,000 Arbitration Award

Our team of attorneys obtained a binding arbitration award against the Kaiser Foundation Health Plan on behalf of an infant afflicted with cerebral palsy following negligent delivery at the Kaiser Hospital at Redwood City, California.  Our attorneys proved that the child endured a severe hypoxic injury when his mother’s uterus ruptured during labor because the attending midwife negligently managed the mother’s delivery and failed to reduce or stop the administration of Pitocin, a labor-enhancing drug.  Our team also demonstrated that the nurses left the mother unattended before the uterine rupture, which resulted in their failure to timely note the ominous signs of fetal distress.  Our child injury specialists obtained an arbitration award in the maximum amount of general damages available under California law, $670,000 in future lost earnings, $330,000in past medical bills, and reimbursement for in-home nursing and attendant care at the rate of $15,000 per month, increasing at 3% per year, for the life of the child.  The arbitrators also awarded the mother $250,000 for emotional distress, and $84,000 for household modification expenses. 

Wrongful Death of Adult Survived By Partents  - $3,035,000 jury verdict

Our wrongful death trial lawyers obtained a jury verdict in the amount of $3,035,000 on behalf of the surviving parents of a 29-year-old single male who died following a missed diagnosis of skull fracture.  The decedent, while surfing in the Half Moon Bay area, was struck in the head.  He visited a local urgent care center/emergency room where the physician on duty failed to palpate the wound, take an x-ray or suspect a fracture.  In fact, the young man had sustained a fracture of his skull with resulting laceration of the middle meningeal artery.  He was discharged with a prescription for Vicodin.  One and a half hours later he collapsed at home from mounting intracranial pressure.  Emergent neurosurgery at San Francisco General Hospital was unsuccessful in saving his life.  The defendant emergency room physician claimed that the decedent acted normally and showed no signs whatsoever of significant head injury or concussion when he presented to the emergency room, and there was no reason to seek an x-ray or explore the depth of the head wound since it had stopped bleeding at the time of the visit.  After a three week trial Walkup's wrongful death trial team waited as a San Francisco jury deliberated for two and a half days before returning its verdict. 

Negligent Spine Surgery – $2,800,000 Brain Damage Settlement

Our medical negligence team negotiated a settlement having a present cash value of over $2,800,000 on behalf of a 44-year-old grocery store manager who suffered major brain damage following anterior cervical fusion surgery.  Nine hours after the surgery had concluded, our client sustained a massive cardiac arrest and was discovered in a vegetative state by hospital personnel.  Our attorneys demonstrated, using experts in the field of hospital administration and nursing, that the attending nurses had negligently failed to timely observe and report signs and symptoms consistent with a post-operative hematoma.  Our medical liability team showed that the nurses assigned to the patient’s care were inexperienced and that as his vital signs deteriorated, they failed to bring these ominous changes to the attention of the attending physicians.  Under the terms of the settlement, periodic payments were negotiated to provide for our client’s present and future attendant care needs.  More than $1,000,000 was paid in a lump sum, from which various liens were satisfied. 

Failure to Recognize Neonatal Hypoglycemia – $2,250,000 Settlement

Walkup attorneys obtained a mediated settlement of $2,250,000 on behalf of a male infant who now suffers from blindness, developmental delay and cognitive deficits, and who also had his pancreas removed, after nursing staff failed to follow proper protocols when the infant showed signs of hypoglycemia.  The infant was born weighing 10 pounds, 7-1/2 ounces, which should have triggered a nursing protocol requiring blood screening tests at one, two, four, six and eight hours of age. Any tests revealing low blood sugar levels required that a blood sample be drawn and sent for analysis. In this case, the infant’s six-hour test was conducted at seven hours of age, and came back showing low blood sugar. However, the protocol requiring that blood be drawn and sent to the lab was not followed. The infant’s parents were never told of the abnormal result or warned to look for signs of hypoglycemia. At 24 hours of age, the infant and his parents were discharged. On the second morning at home, his mother had a hard time rousing him, and he presented at Urgent Care lethargic, not nursing, and with purple feet. He then suffered several seizures and was admitted to the hospital. Tests revealed that he had nesidioblastosis, a disease of the pancreas, resulting in profound, unremitting hypoglycemia. An MRI revealed evidence of posterior cerebral artery infarction, consistent with the diagnosis of severe hypoglycemia. Ultimately, nearly all of the infant’s pancreas had to be removed. As a result of his cerebral injury, he was left blind, with developmental delay and cognitive deficiencies. Walkup attorneys retained experts to show that failure to follow the established nursing protocol led to failure to appropriately diagnose and treat the infant’s hypoglycemia, which led to the infant’s cerebral injuries. The settlement in this case was structured to pay monthly guaranteed payments, plus $732,000 to be paid into a trust on the infant’s behalf.

$3,000,000 Medical Malpractice Verdict Highlights MICRA Unfairness

The unfairness of MICRA's thirty year old $250,000 cap on non-economic damages was underscored recently in a case tried by Michael Kelly and Doris Cheng on behalf of the parents of a patient who died after his head injury went undetected by an emergency room physician. Ethier v. Poindexter, M.D., (S.F. Sup. Ct. CGC-05-437623). Although a unanimous jury awarded $3,000,000 in wrongful death damages for the loss of Charles and Shirley Ethier's 29-year-old son, the trial judge was compelled to immediately reduced the award to $250,000 (an 83% reduction of the jury's award) in accordance with MICRA's antiquated limits.

In Ethier, Plaintiffs' son presented to the defendant emergency room physician with a head laceration after being struck with a surfboard. Ignoring the possibility of a serious head injury, the defendant neglected to order a CT scan or palpate the wound, and merely sutured the laceration and discharged the patient with a prescription for Vicodin. Shortly after leaving the care of defendant, the patient fell unconscious in his living room and was emergently taken to San Francisco General Hospital where he underwent a CT scan and emergent craniotomy. The decedent suffered a comminuted depressed skull fracture, which lacerated the middle meningeal artery, thereby causing epidural, subdural and intraparenchymal bleeding. As a result of prolonged intracranial pressure, the patient sustained brain death.

The Ethiers filed suit against the emergency room physician for the wrongful death of their son. Knowing that MICRA prevented his liability from exceeding $250,000, the defendant (who had 8 prior claims against him) refused to settle the case because his insurance policy covered liability up to $1,000,000. In essence, MICRA gave him a risk-free trial. (The defendant actually made money sitting in court from the per diem paid by his policy.)

Mike and Doris convincingly argued that had the defendant palpated the wound he would have discovered a skull fracture. The doctor argued that even if he had correctly diagnosed the patient, there would not have been time to arrange an emergency transport to a level one trauma center for evaluation, CT scan and surgical evacuation of the expanding hematoma. However, the jury rejected this argument and awarded Charles and Shirley out of pocket expenses and $3,000,000 in general damages for the death of their son.

The Ethiers are just one of the many families and individuals who have been victimized by MICRA's unfair limits over the last thirty years. The most recent study conducted by the Rand Institute, examining data from actual medical malpractice trials, concluded that defendants' liability is reduced in almost 50% of cases tried in California courts.

For three decades malpractice insurance companies have misled the electorate into believing that medical malpractice cases are responsible for skyrocketing health care costs and driving qualified doctors out of California. In fact, studies show that less than a 1% of all healthcare costs are attributable to legal costs and there is no difference between capped and non-capped states in the ratio of physicians to populations.

It's time California modified its law to protect victims of medical malpractice. There is no justification for telling any parent that if his or her child were struck by a physician driving a car they would be entitled to full compensation, but if killed through the negligence of a physician in the operating room they are only entitled to a fraction of what they are owed.

Spring '07 - MICRA

Failure To Diagnose Elevated Ocular Pressure - $1,100,000 settlement

Walkup medical malpractice lawyers obtained a mediated settlement in the amount of $1,100,000 on behalf of a 21-year-old woman who lost sight in both eyes over a period of weeks while her primary treating physician and hospital emergency room doctors failed to recognize and treat increased intraocular pressure which ultimately caused optic nerve atrophy. Although her condition should have been treatable, none of her physicians appreciated its significance or cause. The case concluded after expert discovery. The modest amount of the settlement reflects the unfair and unequal treatment of victims of medical negligence in California due to California's 35 year old MICRA restrictions. Had the woman's injuries occurred as the result of a product failure, an auto accident or wrongdoing other than medical negligence, her general damage award would likely have been in excess of $10,000,000. Here, because of the strict damage limitation of MICRA, her compensation for a lifetime of blindness (over 60 years) was limited to less than $5,000 per year (maximum damage award in California for pain and suffering in a medical case limited to a total of $250,000 regardless of injury severity).

Failure To Supervise Psychiatric Patient - $996,000 Jury Verdict

The Walkup medical malpractice trial team obtained a jury verdict in the amount of $996,000, following a ten day jury trial, on behalf of a mentally disabled woman who jumped from her second story window in a psychiatric facility where she was supposed to have been monitored. Our client, who suffered from schizophrenia, jumped from the second floor of the building at approximately 1:00 a.m., and thereafter went undiscovered laying outside on the ground for more than five hours, becoming progressively hypothermic, until a staff member noticed that she was missing. At trial, the facility claimed the victim had been checked on "throughout the night" and that she probably jumped out the window shortly before she was found, rather than five hours before. The jury rejected the defense argument. As a result of the fall, our client suffered a burst fracture of her thoracic spine, multiple broken ribs, and residual disability.